VIRGINIA KEY MARINA, INC., A FLORIDA CORPORATION, APPELLANT,
v.
ENRIQUE BELLO, APPELLEE
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The trial court abused its discretion by striking pleadings and dismissing a counterclaim as a sanction for untimely filing a pretrial catalog.
[1] Striking a party's pleadings and entering judgment on the pleadings as a sanction for failure to timely file a pretrial catalog is an abuse of discretion absent a showing…
[2] A trial court abuses its discretion by imposing severe sanctions for a procedural violation without first determining if the violation was willful or in flagrant disregar…
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Join FLexlaw to unlock all legal intelligenceA marina appealed a judgment in a negligence action where the trial court struck its pleadings and dismissed its counterclaim for failing to timely fi…
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PER CURIAM.
Virginia Key Marina appeals from a final judgment in a negligence action. For the following reasons, we reverse.
Enrique Bello sued Virginia Key Marina, alleging that his boat had suffered damages from negligent handling and vandalism while stored at the marina. The marina answered, raised the affirmative defenses of accord and satisfaction and a contractual exculpatory clause, and counterclaimed for unpaid storage fees.
On February 26, 1991, Bello moved to strike the marina’s pleadings, to dismiss its counterclaim, and for judgment on the pleadings as to the issue of liability because the marina had not timely filed its pretrial catalog as ordered by the court.
On March 1,1991, the marina filed its pretrial catalog.
On March 14, 1991, the trial court granted Bello’s motion to strike, to dismiss the counterclaim, and for judgment on the pleadings. The marina moved to set aside that order on the ground of excusable neglect.
The trial court granted that motion but in its written order noted that “judgment on the pleadings as to the issue of liability stands.” Following a non-jury trial, the trial court awarded Bello damages of $603, an expert witness fee, and costs and attorney’s fees.
The trial court abused its discretion in entering judgment on the pleadings and striking the marina’s counterclaim as a sanction for failure to timely file a pretrial catalog. Maqueira v. Almas, 409 So. 2d 199 (Fla. 3d DCA 1982) (striking of pleadings and entry of default judgment and final judgment too severe a sanction for failure to file pretrial catalog in non-jury trial in absence of showing that counsel’s failure to comply was willful or in flagrant disregard of court’s authority).
Accordingly, we reverse and remand for a new trial on both the claim in chief and the counterclaim. Because the record now demonstrates that Bello does not have a claim in which the matter in controversy exceeds $5,000, we direct the court on remand to transfer the action to county court. See § 34.01, Fla.Stat. (1989).
Reversed and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Gine v. Hobbs, 409 So. 2d 199 (Fla. 3d DCA 1982)
- Justo Maqueira v. Almas, 409 So. 2d 199 (Fla. 3d DCA 1982)